Petitions to watch | Conference of May 22

Posted Mon, May 19th, 2014 10:45 pm by Maureen Johnston

At its Conference on May 22, 2014, the Court will consider petitions seeking review of issues such as the validity of an Alabama redistricting plan under the Voting Rights Act of 1965, the scope of an anti-retaliation provision under Title VII of the Civil Rights Act of 1964, and the standard to determine a “true threat” under the First Amendment.

This edition of “Petitions to watch” features petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues. Our policy is to include and disclose all cases in which Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, represents either a party or an amicus in the case, with the exception of the rare cases in which Goldstein & Russell represents the respondent(s) but does not appear on the briefs in the case.

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioners in this case.

Issue(s): Whether Alabama’s effort to redraw the lines of each majority-black district to have the same black population as it would have using 2010 census data as applied to the former district lines, when combined with the state's new goal of significantly reducing population deviation among districts, amounted to an unconstitutional racial quota and racial gerrymandering that is subject to strict scrutiny and that was not justified by the putative interest of complying with the non-retrogression aspect of Section 5 of the Voting Rights Act; and whether these plaintiffs have standing to bring such a constitutional claim.

Issue(s): Whether Section 704(a) of Title VII of the Civil Rights Act
of 1964 prohibits retaliation against a worker because of the worker’s statements: (1) only when the statements are made to
the worker’s own employer or to federal or
state anti-discrimination agencies (the rule in the Tenth and Fourth Circuits), or (2) also when the worker’s statements are
made to any other person (the rule in the First, Second, Third, Fifth, Sixth and Ninth Circuits).

Disclosure: John Elwood, a frequent contributor to this blog, is among the counsel to the petitioner in the case.

Issue(s): (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Issue(s): Whether the Eighth Circuit applied the incorrect standard of review and erred in upholding the Environmental Protection Agency’s assertion of authority to overrule the reasonable policy and technical decisions made by the state of North Dakota in its Visibility Program state implementation plan, contrary to the authority delegated to the state under the Clean Air Act, and in conflict with decisions of this Court and other federal courts of appeals establishing the division of federal-state jurisdiction under the Act.

Issue(s): Whether, despite the Regional Haze Program of the Clean Air Act, which allocates to the states the task of fashioning and then implementing plans to improve the aesthetic quality of air over certain federal lands, the United States Environmental Protection Agency may nonetheless conduct a de novo review of the state of Oklahoma’s plan, in conflict with both the limited authority granted to the agency under the Act and decisions of this and other courts that have recognized the primary role given to the states in implementing the Clean Air Act.

Issue(s): Whether the United States Constitution prohibits a state
from taxing all the income of its residents -- wherever
earned -- by mandating a credit for taxes paid on
income earned in other states.

Issue(s): (1) Whether the Due Process Clause of the Fourteenth Amendment allows a social worker to take temporary custody of a child, without advance notice and pre-deprivation evidentiary hearing, when the social worker has probable cause to believe that the child has been abused; and, if not, whether the contrary legal principle was clearly established in 2002; and (2) whether the Sixth Circuit erred by conducting its qualified-immunity analysis of the children’s Fourth Amendment claim at a high level of generality and holding that the “absence” of case law specifically mentioning social workers was enough to clearly establish that the Fourth Amendment applies in the context of child-safety seizures by social workers in the same manner as in the criminal-law context.

Issue(s): (1) Whether the Ninth Circuit improperly held that
Martinez v. Ryan provides a
“more lenient rule . . . for excusing procedural default”
than does Coleman v. Thompson,
and encompasses both cause and prejudice to excuse
the procedural default of a habeas claim; and (2) whether the Ninth Circuit improperly removed the prejudice prong from an analysis of ineffective assistance of post-conviction counsel as provided in Martinez and Strickland v. Washington.

Issue(s): (1) Whether the Mississippi Supreme Court erred in
holding that the Confrontation Clause of the Sixth
Amendment permits a forensic analyst to inform the
jury of the results of forensic testing of DNA evidence
that she did not participate in or observe, so long as
she is “familiar with each step of the complex testing
process conducted by” the non-testifying expert and
“conducted her own [comparison] analysis” of the
DNA profiles generated by the non-testifying expert; (2) whether the court below erred in holding that the
Eighth and Fourteenth Amendments permit the
exclusion from a capital trial of a defendant’s
proffered evidence of the harsh and suffering prison
conditions he would face if the jury elected a sentence
of life imprisonment instead of execution, where such
evidence rebuts the argument that the death penalty
is needed to hold the defendant accountable, rebuts
the state’s suggestion of future dangerousness, and
is constitutionally relevant mitigation evidence; and (3) whether a violation of the Eighth Amendment’s
requirement that jurors be permitted to form a
reasoned moral response to the defendant’s
background, character, and crime may be excused as
harmless error, as the court below and some United
States courts of appeals have found, or whether such
constitutional error must require automatic reversal of the
death sentence, as other United States courts of
appeals have held.

Disclosure: Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case through the Stanford Law School Supreme Court Litigation Clinic.

Issue(s): Whether the Confrontation Clause of the Sixth
Amendment permits a forensic analyst who did not
observe or participate in any of the forensic testing at
issue to tell the jury the conclusions that another
analyst set forth in a testimonial forensic report – so
long as the testifying analyst offers an “independent
opinion” that, based on reviewing the other analyst’s
report and notes, she agrees with other analyst’s
conclusions.

Issue(s): (1) Whether the Confrontation Clause prohibits a government expert, who merely reviewed a nontestifying forensic analyst’s certified report, notes, and results and did not personally conduct or observe any of the relevant analyses, from testifying regarding the analyst’s procedures and conclusions and opining on the analyst’s results; and (2) whether the Seventh Circuit erred by applying a harmless-error standard that ignores the impact that testimony admitted in violation of the Confrontation Clause, which the government relied on in closing arguments, had on the jury, and instead focused on the sufficiency of the remaining evidence, directly conflicting with this Court’s precedent and that of other federal courts of appeals.

Issue(s): Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

Trinity Lutheran Church of Columbia, Inc. v. ComerThe Missouri Department of Natural Resources' express policy of denying grants to any applicant owned or controlled by a church, sect or other religious entity violated the rights of Trinity Lutheran Church of Columbia, Inc., under the free exercise clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status.

Hernández v. Mesa(1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.